When I did the explanatory post on single-sex exemptions I briefly mentioned the issue of non-binary people and said that it deserved a post all of its own. Here is that post.

I should start off by reminding everyone that there are more than two genders. Most cultures throughout history have recognised this, and many governments around the world today recognise non-binary people in some way. The list includes, but is not limited to: Australia, New Zealand, parts of the USA and Canada, Germany, India and Pakistan.

Also there are more than two sexes. Biological sex is a social construct which, in theory, is based on a collection of physical characteristics (some of which are fairly recently discovered). While most cisgender people exhibit the full collection of characteristics associated with their gender, many do not. Nor do a large proportion trans people. In practice, biological sex is assigned to babies on the basis of their external genitalia; and assumed in adults on the basis of gender presentation and secondary sex characteristics. Neither of these methods is very scientific.

So non-binary people definitely exist, both socially and medically. But in the UK they do not exist legally. This is a problem, both for them, and for the rest of society. We need to fix this, and we can’t do that by pretending that they don’t exist.

The argument for providing spaces that cater to non-binary people should be obvious. Just like men and women, they need spaces of their own. In some cases that can be solved by having all-gender facilities, and we do that quite happily with toilets in our homes, and on trains and aircraft. In other cases, non-binary people might want, or need, separate treatment.

There is a particular problem with spaces like rape crisis centres and domestic violence shelters, because currently almost all of the burden for supporting non-binary people is being placed on women’s services. Those non-binary people who have more feminine physiology are sent to women’s shelters because they are seen as women, and non-binary people who have more masculine physiology, but more feminine presentation, also get sent to women’s services because it is assumed they won’t be safe in men’s services.

Obviously this is a very new thing for such services, and they will need to work out procedures for risk assessment and safeguarding, but at the moment non-binary people are being failed by the social services.

Provision of spaces for non-binary people can also be of assistance to binary-identified trans people early in their transition. Because it can take several years for hormones to work their magic, and to work your way through waiting lists for surgery, almost all binary-identified trans people go through a period of worrying about being accepted. Whether we like it or not, most people make judgements based on appearance. Going into single-sex space when you feel that you don’t look right can be a very scary thing. The advantage of non-binary spaces is that there is no stereotypical appearance for being non-binary. So people in the early years of transition may feel safer using non-binary spaces.

Non-binary spaces may also be of help to people who are gender-non-confirming. For example, if you are a butch lesbian you may present in a very masculine style. The current panic over trans women in toilets is causing significant problems for masculine-presenting women. While I think it is outrageous that people who have lived as women all their lives are being thrown out of women’s toilets because of a misguided moral panic, it may be that such people will find it safer to use non-binary spaces.

Finally I want to note that legal recognition for a non-binary gender may have potential benefits for intersex babies with ambiguous genitalia. The fashion for “corrective” surgery on such children is rooted in the erroneous belief that there are only two genders, and only two sexes, and that anyone who does not conform to that model is a deviant who much be “fixed”. Creating a society in which non-binary gender is recognised should lead us away from such harmful ideas.

Please note that I am not advocating that all gendered spaces become non-binary. While we still have patriarchy, women will always need space spaces to go. Women’s toilets in pubs and clubs, for example, are not just used as toilets. They are a safe space where women can go if they feel unsafe. Non-binary people will doubtless need their own such safe spaces.

Looking at the responses to the Scottish Gender Recognition Act Reform Consultation it is clear that almost all of the anti-trans lobby is also anti-non-binary. I’d expect this from the religious right, but it is very disappointing to see the same conservatism from self-identified feminist groups. Which just goes to show that such groups are not really interested in protecting women. What they are interested in is forcing everyone to conform to the gender they were assigned at birth.

So when you fill in your GRA response, which I hope you will all be doing, please encourage the government to start along the path of non-binary recognition. They are reluctant to do this, because sex/gender is deeply ingrained throughout our legal code. But, as other countries have shown, we do not have to change every law at once. We can make a start, and every little helps.

Much of the debate around reform of the Gender Recognition Act centres on interpretation of the relevant legislation (both the GRA and the Equality Act). There have been many claims in the media that changing the way in which Gender Recognition Certificates are granted would give trans people “new rights”, and that these rights are in direct conflict with the rights of cisgender women.

In response trans activists and their allies have pointed out that most of the rights that trans people currently have derive from the Equality Act, not from the Gender Recognition Act. The Equality Act already grants trans people rights on the basis of self-identification because a person acquires the Protected Characteristic of Gender Reassignment from the moment that they propose to undergo that process.

That interpretation appears to be clear from reading the Equality Act, and it is further reinforced by guidance produced by the Equality & Human Rights Commission (EHRC). The document, “Provision of goods, facilities and services to trans people – Guidance for public authorities: meeting your equality duties and human rights obligations” was written to help public authorities understand their obligations to trans people.

On page 27 in the section on the health Service the EHRC says:

It is also important to note that determining the best way to accommodate a trans person:

• does not depend upon them having a Gender Recognition Certificate or legal name change
• applies to toilet and bathing facilities (except, for instance, that preoperative trans people should not share open shower facilities), and
• should not be influenced by the views of family members which may not accord to the trans person’s wishes.

This makes the following points clear:

• Trans people are covered regardless of whether they have a GRC;
• Trans people already have the right to access gender-appropriate toilets, etc.; and
• That the EHRC is aware that trans people who have not had genital surgery might reasonably be excluded from communal facilities where they would be seen naked.

In other words, the idea of trans women going into communal women-only spaces and “waving their willies about” had already been considered when the EA was passed, and reasonable accommodations were made.

It is interesting to note that the EHRC was as concerned for the welfare of trans people as for it was for cis people. In the section on education (page 46) they note:

Trans people frequently face unnecessary problems regarding single-sex accommodation and single-sex facilities.

Research conducted by the Equality Challenge Unit suggests that some trans students may not feel comfortable in single-sex accommodation where there are communal showering facilities.

This reinforces the claim that many trans people would be uncomfortable having people see them naked if they have not had the surgeries that they want. The idea that trans people are shameless exhibitionists who will flaunt their bodies whenever possible has no basis in everyday life.

As far as I can see, there is only one area where there is a possibility of a major issue resulting from the proposed GRA changes, and that relies on a contested interpretation of the Equality Act.

Currently the EA allows trans people to be excluded from single-sex services under certain, highly constrained conditions. The example given in the Act is:

A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

It is important to note that this does not allow for a blanket ban on trans women using rape crisis centres. Specific conditions have to be fulfilled, and each exemption has to be justified on a case-by-case basis.

Confusion arises, however, in the case of a trans woman with a Gender Recognition Certificate. The GRA states that someone in possession of such a Certificate should be treated as a person of their acquired gender for all purposes under the law. The key question is: can a trans woman with a GRC be lawfully excluded from a woman-only service under the provisions described above?

Over the past 8 years in which the EA has been in force, most professionals in the equality business have assumed that the answer is Yes. Certainly in my own training I always advise that this is the case. Indeed, this has been a bone of contention for trans activists who feel that it is unfair to exclude someone with a GRC in this way. In his evidence to the Transgender Equality Inquiry, James Morton of the Scottish Transgender Alliance said:

The exception, as currently drawn, effectively has no limit. You could be decades transitioned, you could be fully integrated and you could still be turned away at your moment of need from a refuge or from a rape crisis service.

However, anti-trans activists have recently begun to claim that a trans woman with a GRC cannot legally be excluded from a single-sex service. The consequences of this interpretation are quite significant. Currently just under 5,000 GRCs have been issued. Around half of those will be to trans women. But the government believes that this represents only a fraction of the number of people eligible to apply for one. Furthermore, the proposed GRA changes will allow trans people to apply for a GRC earlier in the transition process, so there will be an initial bump in the numbers. It is not unreasonable to assume that the GRA changes will increase the number of trans women with GRCs by a factor of 4 or 5.

The anti-trans lobby claims that this is a an entirely new group of people who will not be able to be legally excluded from a single-sex space. But are they right?

It is important to note that there is no definite legal answer to this. A court could rule either way, and as yet there is no legal precedent. However, as I have noted, up until now there has been a consensus agreement that trans women with GRCs can be excluded from women-only services, under the limited provisions of the EA. It would be good if the government’s reform of the GRA clarified this point so that we all knew where we stood. I believe that they will, and I am confident that they will make it clear that having a GRC does not make you exempt from the single-sex service exclusion provisions.

To understand why we have to look at what the government is trying to achieve with GRA reform. Part of their concern is the UK’s obligations under international human rights agreements. We are falling behind other countries, and this is not good. My colleague, Bea Gare, from WEP Exeter is far better placed to write about this than I am. I hope she will do so.

The other thing driving the government’s agenda is consistency of people’s identification documents. When the GRA was first proposed it was expected that transition would be a fairly swift process, and that legal gender recognition would come at the end of that process when the transition was deemed to be complete. It was expected that this would take a little over two years.

I underwent transition in the 1990s, and it took me 5 years. A friend who transitioned more recently tells me that she was 8 years in the process. The government knew that people in transition would need some documents changed immediately, but were not too worried about this because they expected legal gender change to follow within few years. This is not happening.

In the comprehensive study of LGBT life in Britain published earlier this year the government revealed that only 12% of the trans respondents had a GRC. The idea that thousands of people in the UK have a driving licence and passport in one gender, but are legally a different gender, makes heads explode in the Home Office. This is no way to run a national bureaucracy.

The reasons for the lack of uptake of GRCs are many and varied. 34% of respondents to the government survey said that the process was too expensive, while 38% said that it was too bureaucratic. (There may be some overlap between these groups as respondents were allowed to give more than one reason).

If getting a GRC was really important, maybe people would be more desperate to get one. But the value of a GRC has declined since they were introduced. Most of the rights that trans people have derive from the Equality Act. Pension ages are being equalised, so there is no advantage there from being legally female. And if you are a heterosexual trans person without a GRC and want to get married, you can always get a same-sex marriage, though many such people would find that humiliating.

There is no obvious way that the government can make having a GRC more valuable, so instead they want to remove some of the barriers to getting one. The expectation is that only people who would eventually have qualified for a GRC under the current system will get one under the new one. (And the requirement for a Statutory Declaration will be maintained to help ensure that.) The government certainly doesn’t expect to be giving people new rights, just making it easier for them to get ones they are already entitled too.

But in making this change the government has opened itself up to the idea of granting GRCs earlier in the transition process. It has done so because it doesn’t want any gap between changing social gender and legal gender. After all, who knows how long the process will take? This is a shift from the granting of a GRC being the end point of the process, to it being the start point of the process. Given the way that the government thinks, that makes it far more likely that they will be minded to confirm that trans women with GRCs can be excluded from women-only services under the existing provisions in the Equality Act. They will reason that if you haven’t completed the process then of course having a GRC doesn’t change that.

That brings us to another wrinkle in the government’s plans. 44% of those people who had not applied for a GRC said that they believed they would not qualify. Partly that is a result of the reputation that the Gender Recognition Panel has of insisting on conformance to gender stereotypes. But mainly it will be because those people are non-binary and have no legal gender that they can transition to. That is complicated enough to have to be the subject of a separate post. For now I am concentrating on binary-identified people.

As someone who has gone through full binary transition, passing all of the obstacles that the government has put in my way, I am slightly miffed to know that I still won’t be regarded as fully female under the law even though I have a GRC. However, I am not too worried about this. I work a lot with women-only services, advising them on trans inclusion. Most of them are very keen to be welcoming to trans women. In addition, the reasons why a service might want to exclude me in some way, or rather provide me with a different type of service to cis clients, would either be for my protection or for reasons that would apply whether I was trans or not. Services do risk assessment on all clients, and will exclude clients from group activities for all sorts of reasons. These services are run by wonderful, understanding people, and I am confident that if I needed their help they would try hard to provide it.

However, there is a small possibility that the government will decide that trans people with GRCs cannot be excluded from single-sex services. One thing that the government does not like is being seen to be taking away people’s rights. If the anti-trans lobby succeeds in changing the consensus on this issue, and it becomes commonly accepted that trans women with GRCs cannot be excluded from women-only services, then the government might be reluctant to change that. So if I was anti-trans I would be very careful what I was arguing for.

(Once again I am closing comments on this post as I don’t have the time to deal with a hate storm. If you have questions, I am not hard to find.)